A major new judgment from a full bench of the high court in Namibia has set aside that country’s common law crimes of sodomy and unnatural sexual offences. The court found them both unconstitutional and invalid, and said they made unjustified inroads on the human dignity of those affected. Given that this is a country with strongly conservative social views, how did the court deal with the question of the weight to accord public opinion?
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It would be hard to exaggerate the significance of the Namibian high court’s decision declaring the country’s common law offences of sodomy unconstitutional. The decision will have a far-reaching impact on Namibia’s LGBTQ people and has been widely welcomed by the human rights community, both local and international.
One of the most interesting aspects of the judgment is the way it handles the difficult question of public opinion. The three judges who unanimously decided the issue could hardly avoid dealing with the reality that many Namibians are socially very conservative. How should this factor affect the court and the outcome of the dispute on whether the sodomy laws should stay? Did these views, unsubstantiated by more, amount to a legitimate purpose in keeping the laws?
The court had no hesitation in its answer, and made short work of the role that public opinion should be given in justifying the denial of rights to an unpopular group.
‘Private moral views based on prejudice’
‘Can it be said that to criminalise consensual anal intercourse between consenting males in private, simply because we consider it … immoral, shameful and reprehensible and against the order of nature, is so important an objective as to outweigh the protection against unfair discrimination? …
‘We are of the firm view that the enforcement of the private moral views of a section of the community (even if they form the majority of that community), which are based to a large extent on nothing more than prejudice, cannot qualify as … a legitimate purpose.’
The judges concluded this section by saying that in a constitutional democracy such as Namibia, it was not ‘reasonably justifiable’ to criminalise an activity merely because a segment, even perhaps a majority, of citizens thought the activity unacceptable.
Court’s role to determine content, impact of constitutional values
The judges also quoted Namibia’s apex court which had already emphatically rejected the contrary approach. It had held that while public opinion expressed by MPs through legislation they enact could be relevant in making known the views and aspirations of the Namibian people, ‘the doctrine of the separation of powers … means that it is ultimately for the court to determine the content and impact of constitutional values’.
The high court also quoted an important early decision of SA’s constitutional court saying that the whole reason for setting up a new legal order, giving the courts power of judicial review of all legislation, ‘was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process.’
And at the end the high court again summed up its position on this particular argument about public opinion: the common view that homosexuality was an abominable vice was often merely a ‘compound of prejudice and personal aversion (representing no conviction but merely blind hate rising form unacknowledged self-suspicion).’ It was quite possible that the ordinary person could produce no reason for such views, but ‘would simply parrot his neighbour who in turn parrots him.’
Unfair discrimination leads to unconstitutionality
Another potentially significant argument put up by the government was that in the Namibian constitution, sexual orientation was not among the listed grounds on which discrimination would be automatically unfair. True, said the high court. But just because a ground wasn’t listed was, on its own, no licence for the law to discriminate on that ground.
As with SA, Namibia was concerned to overcome the past in which inequality was systematically entrenched by colonialism, racism and apartheid. The Namibian constitution thus spells out the state’s desire to promote the ‘dignity of the individual’ and the Namibian supreme court had long held that the lawfulness of any discrimination based on grounds other than those listed as automatically unfair, had to be considered in the light of constitutional provisions that say the dignity of all persons ‘shall be inviolable’.
In this case, the court said, it had found that the disputed laws unfairly differentiated between male and female and between gay and heterosexual men. And, as a former chief justice had put it, unfair discrimination leads to unconstitutionality. The court thus declared the common law crimes of both sodomy and unnatural sexual offences, unconstitutional and invalid, along with other legal provisions of which these two common law crimes formed part. The government was also ordered to pay the legal costs of the application.
‘My love will never be a crime again’
The outcome was welcomed ecstatically by LGBTQ people, and Friedel Dausab, who had brought the case, commented that for him personally, ‘it means that my life and my love will never be a crime again’.
He had earlier told the court that while the constitution guarantees protection against inhuman and degrading treatment, he wasn’t free to be himself. The mere existence of the crimes of sodomy and unnatural sexual offences had negative consequences for gay and bisexual men who lived in fear that they were ‘committing criminal offences when they express love and affection towards each other.’
Their parents, too, suffered anguish knowing that their children engaged in ‘criminal’ sexual acts, while for the men themselves, their self-esteem was undermined by the existence of these offences ‘which label their most intimate relationships as criminal, undesirable and wrong.’
Earlier reports urged decriminalisation
The new judgment has not come out of the blue. Namibia’s own national ombudsman had issued a report saying that the continued criminalisation of sodomy in Namibia made gay men vulnerable to discrimination and infringed some of their most basic constitutional rights.
And in June 2021, the country’s law reform commission issued a detailed report saying the common law crimes of sodomy and unnatural offences were ‘possibly obsolete’ and should be repealed.
These two common law crimes were also raised by the United Nations in Namibia’s Universal Periodic Reviews, with calls for the de-criminalisation of consensual homosexual activities.
Conservative protests can be expected
But despite the court’s new decision, and the welcome given to the outcome by the international human rights community as well as by local LGBTQ people and their supporters, it is still not clear how the outcome will be accepted in Namibia.
For example, Amnesty International points to a fierce anti-LGBTI backlash in Namibia, primarily driven by faith and religious leaders, in the wake of last year’s supreme court decision recognising same-sex unions carried out in other countries.
That decision was followed by legislation, still awaiting presidential assent, that outlaws any form of marriage between same-sex couples and criminalises any support, celebration of or promotion of same-sex unions with jail terms and hefty fines.
There is also concern about an increase in online harassment already being experienced in the run-up to this year’s elections, due in November.
Judgments legalises consensual sex only; rape covered by rape laws
The new judgment deals with private, consensual anal sex only. In the context of the decision there was no need for the court to mention that there are, of course, specific protections against anal rape in Namibia. These are found in statute law under the Combatting of Rape Act and its subsequent amendments. It includes specific mention of and protection for vulnerable victims of sexual offences. Some critics of the new decision, agitated by the direction in which the courts are going, will no doubt need to be reminded of these provisions.
Will the government appeal? It’s difficult to say. Given that this is an election year it may feel pressure to do so in view of public sentiment among certain voters. Even if it did, however, it will surely believe the supreme court is highly unlikely to uphold an appeal. That’s if the apex court’s general approach to constitutional litigation is anything to go by. And, even more so, given the supreme court’s recent decision holding that Namibia must recognise same-sex marriages conducted in countries where these marriages are legal.